6.  The applicant was born in 1970 and lives in Malta.
7.  The applicant was one of the parties to civil proceedings instituted against, inter alia, him (as possessor), concerning the recission of a contract of perpetual emphyteusis of a hotel owing to a failure to effect the relevant payments, namely John Bugeja et proprio et nomine v Caral Ltd and for any interest they might have Paul Muscat [the applicant] and Joseph Muscat. In these proceedings the address of the applicant (the then defendant in the proceedings) was correctly marked as “Olinda Hotel, St. George’s Road, St. Julians”, and the claimant’s address correctly marked as “43, George Borg Olivier Street, St Julians”.
8.  By a judgment of 31 October 2002, the first-instance court found against the defendants and ordered the property to be returned to the claimant. The defendants had forty days to vacate the property.
9.  Caral Ltd, the holder of the emphyteusis and main defendant, did not appeal. In consequence, the rescission of the emphyteusis and the eviction of Caral Ltd became final.
10.  On 20 November 2002 the applicant appealed. The appeal application was signed by Dr M., the Assistant Advocate for Legal Aid. On the same date, through the assistance of Dr M. (in his capacity as Assistant Advocate for Legal Aid), the applicant requested legal aid (Article 911 of the Code of Organisation and Civil Procedure “COCP”). In both the appeal application and the legal-aid request, signed by Dr M., the addresses of the applicant and the respondent were inverted.
11.  On 28 January 2003 the applicant was granted legal aid and Dr A. and Ms T. were nominated as advocate and legal procurator respectively for this purpose. The applicant was informed that he should enquire at the court registry for details of those nominated. It would appear that he did not make an enquiry at the relevant time.
12.  On 29 April 2003 the court bailiff unsuccessfully attempted to serve notification of the appeal on the respondent at “Olinda Hotel, St. George’s Road, St. Julians” (the applicant’s address). In consequence, he marked the notification as undelivered “riferta negattiva” (see Relevant domestic law) and noted that the venue was derelict.
13.  No further attempts at notification were made.
14.  On 20 November 2003, at the first appeal hearing conducted in the absence of both parties, the appeal was declared to have lapsed (been deserted), on the basis that no notification of the appeal application had been made to the respondent within the peremptory one-year period.
15.  On 7 September 2004 the applicant lodged an application with the ordinary courts requesting the revocation of the decision of 20 November 2003, in that it had been issued on the basis of a lack of notification as a result of an error in the address of the respondent as submitted in the appeal application signed by the Assistant Advocate for Legal Aid.
16.  By a decision of 15 September 2004, the applicant’s request was rejected as unjustified on the basis that it had been the applicant, through his legal representative, who had supplied the erroneous address and during the rest of the year the applicant had not taken any steps to rectify the error.
17.  On 1 November 2004, the applicant lodged another application with the ordinary courts, requesting the revocation of the decision of 20 November 2003. He argued, inter alia, that the error had been made by the Legal-Aid Office and not by himself, and that he had never been given a copy of the procedural acts presented in his name, which would have enabled him to rectify the error. On 4 November 2004 the applicant’s case was dismissed as it was substantially the same as his previous request.
18.  On 27 June 2005 the applicant instituted constitutional redress proceedings before the Civil Court (First Hall). Referring to the European Court’s judgments under Article 6 §§ 1 and 3 (c), he complained that the decision of 20 November 2003 and the decisions confirming it denied him the right to a fair trial, to legal assistance and to access to court as guaranteed by Article 6 of the Convention. He therefore requested the court to revoke the said decision.
19.  On 4 May 2009 the Civil Court rejected the applicant’s claims. Having considered the evidence, the court noted that the relevant addresses in the appeal folder had been incorrect and that at the time (after the appeal application against the decision of November 2003) the applicant was not in contact with the Assistant Advocate for Legal Aid but with legal counsel who had acted for him previously, and maybe Dr A., his appointed advocate for legal aid. However, neither of these advocates advised the applicant to verify the acts of the proceedings. Thus, neither the applicant nor a legal representative had ever verified whether the respondents had been successfully notified. In consequence, the Civil Court found that the applicant was mostly responsible for causing the case to lapse, as he had failed to conduct the necessary verifications and had failed to prove that what had happened had been beyond his control. Even assuming that the initial error was imputable to somebody else it was up to the applicant to follow up his appeal proceedings. Moreover, unlike in the case of Czekalla v. Portugal (no. 38830/97, ECHR 2002‑VIII) the error in the present case did not make the appeal null and void, and it could have been avoided if the applicant had been careful to monitor the state of his case.
20.  On 11 May 2009 the applicant appealed to the Constitutional Court. He argued, inter alia, that in view of an error on the part of an agent of the State, the application of “lapsed” status (desertion) provisions to his case had had disproportionate consequences.
21.  On 30 October 2009 the Constitutional Court dismissed his claims on the merits. It reiterated that throughout an entire year the applicant had done nothing to correct the underlying error or to follow up his appeal proceedings. The case was the applicant’s and not the lawyer’s and therefore it was the applicant’s responsibility to show assiduous interest in what was going on and to follow the case scrupulously. The error in the present case was a minor one and could have been corrected. It was, therefore, irrelevant who had originally made the mistake. A simple check could have easily been made with the court’s registry. However, nothing had been done, and in consequence only one attempt to notify the respondent had been made.
22.  As to the application of Article 963 (see Relevant domestic law) of the Code of Organisation and Civil Procedure (“COCP”), the Constitutional Court held that the provision used the word “may” and therefore the court was not obliged to make any assessment to decide whether the use of the provision would be justified. In any event, in the present case, it had appeared that notwithstanding the first failed notification (riferta negattiva) nothing had been done to request a second notification. It followed that the court’s decision not to make use of the provision had been justified. Moreover, procedural rules safeguarded the interests of both parties and those of legal certainty.